Your Tuesday Morning Digital Dump.

Hi kids, day two of the school year -- is it almost over yet?

Let's take a peek around the South Florida legal landscape:

1.  Melanie Damian channels her inner Donald Rumsfeld:

"What we don't know at this point is what we don't know," Damian said, indicating that there may be assets Price did not disclose.

Hmm, somehow seems much more reasonable when Melanie says it.

2.  The 11th Circuit affirms Judge Seitz and enforces another arbitration clause against a cell phone provider -- hey, I'm sure no one has ever had a problem with that industry's business practices:

The Supreme Court in Concepcion expressly rejected the notion that the state law should not be preempted because the class action waiver would effectively shield the defendant from liability. See Concepcion, 131 S. Ct. at 1753 (“The dissent claims that class proceedings are necessary to prosecute small-dollar claims that might otherwise slip through the legal system. But States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for other reasons.” (citation omitted)). Pendergast’s attempts to distinguish Concepcion are unavailing.13

For the reasons set forth above, we conclude that we need not reach the questions of whether Florida law would invalidate the class action waiver in the parties’ contract because, to the extent it does, it would be preempted by the FAA. Under Concepcion, both the class action waiver and the arbitration clause must be enforced according to their terms.

State's rights anyone?

3.  In Philly prosecutors are taking second jobs:

CARLOS VEGA is a veteran homicide prosecutor, putting scumbags behind bars, sometimes for life.

His latest high-profile case: Antonio Rodriguez, the so-called Kensington Strangler, who was convicted Thursday of three counts of first-degree murder, rape and related offenses in the deaths of three women.

With his high-pressure job and a daughter who lives at home, you'd think Vega wouldn't have time for anything else.

But his city salary hasn't been enough to give his daughter and son the schooling he wanted for them. So, for 14 years, he's been juggling two jobs. His second gig? He's a UPS supervisor.

In fact, Vega is one of several prosecutors in the city who have taken on second jobs to make ends meet. Others have been bartenders or waiters. One assistant district attorney recently moved back into her parents' house.

"Although we're attorneys, we work for the city," Vega said. "We don't make the money that people think lawyers make."

Note to Carlos -- don't move to South Florida!

4.  Andrew Hall files an odd case:

When Andre Frings returned to his South Beach apartment from a trip to New York last December, his jaw dropped at what had happened to the historic building next door. The 1926 art deco edifice was completely gutted, the graceful façade gone. Frings suspected the developer had broken the Beach's historic preservation codes, so he filed a complaint. The city investigated and, sure enough, found that demolition had exceeded the scope of permits. The developer spent months making fixes.

Democracy at its finest, right? Not for Frings. Last month, the developer -- Brickell-based Jeffrey Schottenstein -- filed a lawsuit against the SoBe resident, seeking more than $15,000 for the egregious crime of reporting his problems to the city.

"It's ridiculous because I don't have any influence. I'm just a resident," Frings says. "All I did was write to the city about my concerns."

Andrew Hall, Schottenstein's attorney, says Frings was wrong to air his grievances when work was already underway. "Guys like this, they think they're smarter than everyone else," he says. "He doesn't care about the consequences of his actions."

Frings's attorney, Michael Schlesinger, has a different take on the suit. "It's a frivolous action brought solely to intimidate and punish [Frings]," he says.

 WTF?

As someone smart once said, what we don't know at this point is what we don't know.

Looks Like Jeremy Alters Has Finally Made It!

And by "made it," I'm not referring to his firm's role in the recent BoA checking overdraft settlement preliminarily approved by Judge King the other day, I'm talking about getting sued for a percentage of the fees that may be recovered down the road:

As an exhibit, the suit includes a copy of a contract between Campos and Alters' former firm, Alters Boldt Brown Rash Culmo. The agreement stipulates Campos agreed to work exclusively for Alters to develop potential cases.

"Campos brokered significant relationships on behalf of … Alters ... in Latin America such as top members of the government, law firms, attorneys and other noteworthy persons who were instrumental in the origination of cases pursued by the Alters law firm as a result of its agreement with Campos," the complaint said.

Hmm, these things don't ordinarily end too well for anyone involved.

This part isn't too good either, if true:

Campos y Asociados also alleges it originated the Bank of America lawsuit pending before U.S. District Judge James Lawrence King and is entitled to a 25 percent origination fee. Alters acknowledged the class action was originated by Campos in an email Aug. 21, 2008, according to the suit.

Alters has hired Andy Hall, who has moved to dismiss the suit claiming these are foreign attorneys unauthorized to practice law in Florida, and thus the contract is illegal or unenforceable?

If so wouldn't that leave a quantum meruit or unjust enrichment-type claim?

3d DCA Watch -- Judge Schwartz Kicks Off the New Year With a Bang!

Our favorite Senior Judge had a big week to kick off 2011. 

Let's take a look:

Tahiti Beach v. Pfeffer:

Here the good judge just sits on the panel as Judge Salter, in his usual efficient and logical way, disposes of Andy Hall's appeal on behalf of swanky Tahiti Beach, which had imposed a $285k fine on a homeowner for not completing their construction or landscaping within 24 months.

The cretins!

Higginbotham v. Higginbotham:

Here Judge Schwartz reduces a spouse's $305k fee award as excessive, noting that the husband's counsel's fees were only $138k for pretty much doing the same work.

Miami-Dade County v. Eghbal:

Finally, here Judge Schwartz dissents from an affirmance of an age discrimination and retaliation claim against the County, saying there just was not enough evidence:

I do not believe the evidence is sufficient to demonstrate an indispensible element of a retaliation claim: that is, that the decision makers actually knew of the employee’s complaint so that their adverse action could have been causally related to that protected activity.....In this regard, it is undisputed that (a) Eghbal never told any of the three panel members, either specifically or impliedly, that he had made such a complaint and (b) two of the three stated, in unimpeached and uncontradicted testimony, that they were not aware of it.

Ok, but what about the third one?

3d DCA Watch -- Through A Glass, Obversely Edition

Hi kiddies!

Is it kismet, fate, or simple indigestion that I happened to glance at my DCBA Bulletin and, after reflecting on the full-color beauty that is my friend Timothy Ravitch (what, no color for Gisela Munoz?), noticed that the DCBA plans to honor Judge Schwartz with a Judicial Excellence Award.

Hey, I just report this stuff.

But alas it is hump day, and my job here is not done. Yes, I must read the scribblings! Or magnificent examples of legal scholarship, you decide.

Whatever you call it, the Resplendently Robed Ones have issued Important Utterances, and damn you, WE WILL NOT BE IGNORED.

Ok ok, we're interested, really, even all you Fancy Pants federal court practitioners, because sometimes those judges (at least the Catholic ones) also try to figure out Florida law.

And good luck with that whole thing.

So onward we go, through the coffee-swilled landscape of beautiful South Dade, and on to this week's patently, patiently, I mean patented 3d DCA Watch:

Hall, Lamb v. Sherlon:

Oh this is a fine South Florida story. Poor Andy Hall, nice guy and good lawyer. Has a client, tries to settle case, client fires him and hires a suspended attorney. Andy then files charging lien, the parties settle, and the suspended lawyer steals all the settlement proceeds.

Just another day in paradise, folks.

Trial court refuses to adjudicate lien against settling defendant. Court reverses, finding that there may be joint and several liability against the appellee/defendant:

Here, it is undisputed that upon being terminated, the law firm notified the parties of its interest in recouping the fees earned during the course of representing the former client. Such a perfected lien is “chargeable against any person who, at the time notice of intent to claim a lien is given, holds monies or property which become proceeds of a judgment to be entered in the future.” Hutchins v. Hutchins, 522 So. 2d 547, 549 (Fla. 4th DCA 1988) (emphasis added). See also Brown v. Vt. Mut. Ins. Co., 614 So. 2d 574, 580-81 (Fla. 1st DCA 1993) (holding that if a party has notice of an attorney’s charging lien, pays out a settlement to the attorney’s client, and fails to protect the attorney’s interest, the paying party may be held jointly and severally liable for the attorney’s fees along with the attorney’s client to the extent of the settlement proceeds or other funds held). Accordingly, the law firm argues that Sherlon, along with the former client and Blumstein, may be held jointly and severally liable for the fees earned during the law firm’s representation of the former client. We agree.

There is no question that as a party to the settlement, Sherlon had an affirmative duty to notify the law firm of the settlement and to protect the law firm’s lien interest in the settlement proceeds. Zaldivar v. Okeelanta Corp., 877 So. 2d 927, 930 (Fla. 1st DCA 2004). Similarly, the record now before us indicates that although Sherlon and the former client reached a settlement by the end of September 2006, Sherlon failed to notify the law firm of the settlement in any way until November 2006—when the parties obtained a dismissal of the action with prejudice from the trial court. Furthermore, Sherlon took no other steps to protect the law firm’s interest. Sherlon did not ask the trial court to prevent the direct payment of the law firm’s fee to Blumstein and the former client or to set those funds aside. Instead, Sherlon paid the entire settlement to the former client (through Blumstein) without providing safeguards for the law firm’s lien interest. And regardless of Sherlon’s intent, by doing so, Sherlon may have committed a fraud upon the law firm. Heller v. Held, 817 So. 2d 1023, 1025 (Fla. 4th DCA 2002).

But no, says Judge Schwartz in dissent. In fact, Judge Schwartz grants the appellee a phantom summary judgment, absolving them from all potential liability:

While I agree that Sherlon did not appropriately alert the appellant law firm of the settlement, I dissent from reversal because that failure was not a legal cause of the firm’s failure to recover.

The reason for informing the lawyer of a settlement is to permit him to take steps to protect his charging lien. See Zaldivar v. Okeelanta Corp., 877 So. 2d 927 (Fla. 1st DCA 2004). In this case, however, the Hall firm, by other means, actually learned not only of the settlement but of the location of the proceeds: in “escrow” with the plaintiff’s representative, a person who stated he was an attorney, but was not. Indeed, the firm succeeded in imposing a charging lien on the fund – just as it would have had the defendant given appropriate notice. Hall did not get its fee, however, only because the “escrow agent” eloped with the entire settlement. Putting it in legalese, the theft was the sole proximate cause of Hall’s damages. Obversely, the appellee’s missteps were immaterial to and were thus not a legal cause of the loss.

First of all, that's not the issue on appeal but umm, how do you know this, Judge? The majority opinion specifically states that "Sherlon did not notify the law firm of the settlement or that it had transferred the total amount to Blumstein."

Maybe if Andy was aware of the pending transfer, before it went to Blumstein, he could have moved to have it placed in a different escrow account or maybe the registry of the court?

Or is that question too obverse?